Assessing Pennsylvania’s suit against the NCAA

Sports legal analyst Michael McCann has chimed in on the Sports Illustrated website:

A state government challenging the NCAA’s power to regulate a matter only loosely connected to sports represents a worrisome alignment of litigants, facts and law for the NCAA. Foremost, the lawsuit emerges from unique circumstances that do not readily fit NCAA precedent and thus make application of law hard to predict. Legal challenges to NCAA regulatory power have normally involved an athlete, coach or university seeking redress for a distinctly “sports” related issue. Those issues have included unauthorized conversations between a student-athlete and player-agent (Andrew Oliver v. NCAA); recruiting violations (NCAA v. Jerry Tarkanian); restrictions on broadcasting of games (NCAA v. Board of Regents of University of Oklahoma); or, as currently being litigated, compensation to players for the licensing of their image or likeness (Ed O’Bannon v. NCAA).

The sports nexus between the NCAA and its punishment of Penn State, in contrast, is dubious. Even the NCAA acknowledged in its Penn State consent decree that “the circumstances involved in the Penn State matter are … unlike any matter encountered by the NCAA in the past.” There’s a reason for that. Punishing a school (and consequently its student-athletes) because its leaders failed to prevent an ex-coach from sexually abusing children does not clearly fit within the NCAA’s purview. Consider NCAA president Mark Emmert’s own view of the NCAA’s mission: “to be an integral part of higher education and to focus on the development of our student-athletes.” To be sure, Penn State’s behavior implicated criminal and civil laws. But that doesn’t answer the relevant question: Did it implicate the development of student-athletes in a way that warrants NCAA penalty?

Where the case seems to go sideways is the argument of who exactly is damaged. Challenging the core power of the NCAA is fine, but that wouldn’t seem to be a priority of a sitting governor.

Penn State was not hit with the so-called “death penalty” so it continued, and will continue, to field a team. The postseason ban doesn’t affect business directly in Pennsylvania since the Big Ten championship game and any bowl game are played outside the state. Sure Penn State is unlike to win as many games in the future due to the scholarship reductions, but that is neither certain (anything can happen) nor a particularly moving argument. It could have lost anyway. Is it Penn State’s birthright to win 10 or more games each season?

There are two basic legal rules that are likely to result in an early dismissal of Corbett’s lawsuit. The words that describe these legal rules are “standing” and “waiver.” To succeed in any civil lawsuit, the person filing the lawsuit must have standing to sue, a stake in the outcome of the dispute. If, for example, a former Penn State player filed suit over the NCAA’s elimination of Penn State victories and championships, he would have standing to challenge the NCAA, because he played in the games. Corbett has no identifiable interest or standing in the welfare of the Penn State football program. His lawyers, clearly worried about the standing question, attempt to establish standing for Corbett with multiple mentions of supposed damage to the “state revenue base,” but it won’t work. Corbett is the wrong guy to file this lawsuit.

It’s not a coincidence that the announcement was made Wednesday, right after the New Year’s Day bowl games. Corbett said he “didn’t want to file during football season to take away from the team’s momentum.”

He actually said those words. Something this vitally important had to wait for the football season to end? If this weren’t such a serious topic, if this weren’t so pathetic and appalling, it would be laughable. Who is running this state, Barney Fife?